Jehial M. Roeder, as Trustee in Bankruptcy of 24 West Thirty-third Street Company, Appellant, v. Oscar J. Mayer, Respondent

Jehial M. Roeder, as Trustee in Bankruptcy of 24 West Thirty-third Street Company, Appellant, v. Oscar J. Mayer, Respondent. First Department, June 16, 1916. Pleading — allegations involving breach, of contract and conversion — when causes of action should be separately stated and numbered — election — withdrawal of election. Where a complaint contains allegations which may state a breach of contract and also a cause for the conversion of moneys, the pleading should be required to be made more definite and certain by separately stating and numbering the causes of action, or by the elimination of one of the causes of action if the pleader does not intend to set forth both breach of contract and conversion. Although the plaintiff had previously disclaimed any intention to claim for .conversion, the appellate court can allow the withdrawal of the election, where it was not sufficiently formal to bind the client. Appeal by the plaintiff, Jehial M. Boeder, as trustee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of April, 1916, granting defendant’s motion to make the complaint more definite and certain by striking out certain allegations. George Edwin Joseph [Henry C. Quinby with him on the brief], for the appellant. Harold Nathan, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: The nature of the cause of action is not definitely shown, by the allegations of the complaint. A breach of contract on the part of the defendant in failing to apply rents due and owing to the bankrupt, but which it duly authorized him to collect from subtenants, in payment of rent reserved and taxes payable under the lease from the owner to the bankrupt, as agreed, in consequence of which the bankrupt was dispossessed and its lease terminated is alleged, and also conversion of the moneys so collected and not applied as agreed. The defendant, desiring to know whether the action is for damages for the breach of the contract, or for the conversion of the funds, or both, moved to have the complaint made more definite by separately stating and numbering the causes of action, if plaintiff claims the right to proceed on both theories, and if only damages for a breach of contract are claimed, then to have the allegations with respect to conversion eliminated, and if damages for the conversion only are claimed, then to have the allegations which would be material only as affording a basis of recovery for damages for a breach of the contract eliminated. The order recites that the brief filed in behalf of plaintiff in opposition to the motion showed that plaintiff disclaimed that the action was for conversion, and on that theory the court properly struck out the allegations appropriate only to an action for conversion. The complaint is left without any allegations of fact with respect to damages, for it is not alleged that the lease had any value, or that the rental value of the premises, from which the bankrupt has been dispossessed through defendant’s failure to perform its contract, was more than the rent reserved. Counsel for appellant now claims that the action is for conversion. When he changed his opinion with respect to the nature of the action, he should have moved to be relieved from his election, and if he claimed that the court must have misunderstood his contention, he should have applied for a reargument. We think, however, that the election was not sufficiently formal to bind his client thereby, and, therefore, the order which should have been made at Special Term will be made here. The order is reversed, without costs, and motion to have complaint made more definite and certain granted, with ten dollars costs, and plaintiff is required to serve an amended complaint separately stating and numbering the causes of action if he claims both for breach of contract and for conversion, and, if not, then eliminating the allegations not appropriate or necessary, as already indicated, to the single cause of action, whether for breach of contract or for conversion. Clarke, P. J., Dowling, Page and Davis, JJ., concurred., Order reversed, without costs, and motion granted as stated in opinion, with ten dollars costs. Order to be settled on ■notice.